- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Monday, March 30, 2020
Monday, March 23, 2020
Coronavirus and Your Workplace: Thoughts for Employers from an Ontario Employment Lawyer
BY SIMRAN BAKSHI, ASSOCIATE LAWYER
UPDATE: With Ontario today mandating closure of all non-essential businesses, effective March 25, we can urgently hope for updated legislation shortly, to guide employers'decisions in the face of CoVid19, and to provide much-needed income security benefits for employees.
Pending such an announcement, however, we must assume that the current legal framework, which is discussed in part by Simran Bakshi below, remains in effect.
That may change, both through amended laws and decisions the Courts will make, perhaps many months from now. We will continue to provide updates, as events unfold.
With words like “pandemic” and “state of emergency” being used to describe the novel coronavirus, it is understandable to feel a bit overwhelmed.
[1] Occupational Health and Safety Act, RSO 1990, c 0.1 at s. 25 and
26;
UPDATE: With Ontario today mandating closure of all non-essential businesses, effective March 25, we can urgently hope for updated legislation shortly, to guide employers'decisions in the face of CoVid19, and to provide much-needed income security benefits for employees.
Pending such an announcement, however, we must assume that the current legal framework, which is discussed in part by Simran Bakshi below, remains in effect.
That may change, both through amended laws and decisions the Courts will make, perhaps many months from now. We will continue to provide updates, as events unfold.
- Garry J. Wise
..............
With words like “pandemic” and “state of emergency” being used to describe the novel coronavirus, it is understandable to feel a bit overwhelmed.
This is all the more true for small businesses across Ontario, who are faced with the challenge of staying financially afloat while prioritizing the health and safety of their customers, employees, colleagues and community.
Perhaps the best advice we can offer at this time is to breathe…
There are steps you can take as a small business owner to protect your business, while doing your part to protect those around you.
1. Remember that the most important aspect is to maintain the health and safety of the workplace
You will inevitably find yourself at a crossroad regarding whether to continue operations to the extent that is possible (based on applicable government regulations), or alternatively, to find a middle ground, such as facilitating remote operations from home, where suitable to your industry.
In some cases, pre-emptively shuttering your business may appear to be your only, available option, particularly if you are subject to legal shut-down requirements in the current, mandated state of emergency.
Your duties as an employer pursuant to the Occupational Health and Safety Act, RSO 1990, c 0.1 [“OHSA”] should be at the forefront of your mind in making this decision. Employers are required by OHSA to:
• Take all reasonable precautions to protect the health and safety of workers;
• Ensure that equipment, materials and protective devices in good working condition are provided to workers; and
• Providing information, instruction and supervision to workers to protect the health and safety of workers;
These obligations apply to not only employees, but to independent and dependant contractors, as well.
Essentially, this means that if you decide to keep your business opened, you must ensure that:
• Persons with flu-like symptoms are not granted access to the work premises;
• The work environment is clean and recommended hygiene practices. such as frequent hand washing and work-area disinfecting, are actively being promoted and implemented;
• Physical and social interactions are limited to the extent possible;
• Your workers are informed of your coronavirus health and safety policies;
Consider:
• Implementing early screening processes to determine whether any persons scheduled to attend at the workplace may have travelled recently, or exhibited symptoms of the coronavirus, or had exposure to someone who is confirmed to have the coronavirus or exhibits such symptoms;
• Minimizing work meetings and events;
• Allowing workers who can work from home to do so;
• Investing in technology to allow more workers to work from home, if possible;
• Implementing social distancing practices in the workplace, such as limiting any physical interactions (i.e. hand shakes); scheduling workers at different times; and separating work and lunch spaces;
• Providing necessary safety measures such as hand sanitizers and disinfectant wipes;
• Increasing sanitization practices;
• Arranging a teleconference meeting to inform workers of the health and safety measures in place, and related policies regarding sick leaves and other absences from the workplace;
Keep in mind that your workers have the right to refuse to work if they have reason to believe their health and safety may be at risk (subject to certain exceptions based on the type of job). Prepare yourself for this possibility and have a contingency plan in place should this occur.
Among the worst things an employer can do to is compel a worker to continue to work despite their legitimate safety concerns, or to discipline or threaten the worker for exercising their right to refuse to work.
All such steps could be considered unlawful, and could expose the employer to legal risk and potential liability for significant damages and penalties.
2. The option of laying-off employees
If you are wondering how you can possibly afford to continue operating your business with little to no incoming revenue, you’ve likely already turned your mind to the different ways you can curb your business expenses.
With payroll often being one of the largest operational expenses in a business, it may be necessary to consider temporarily layoffs as the coronavirus pandemic peaks.
The decision to lay employees off is a difficult one, and it also carries significant legal risk. A layoff is not a termination. It is by definition, temporary in nature, premised on the mutual understanding that the employee will return in due time. Employees who are laid off are typically entitled to EI benefits during their absence, and salary payments are suspended.
As discussed in our previous blog article, if an employee is not recalled to work within the required timelines (initially, 13 weeks) prescribed by Ontario’s Employment Standards Act, the layoff is deemed to be a termination.
The employee then becomes entitledto statutory termination payments, and in larger organizations after five years' employment, to severance pay, as well as potential damages at common law for wrongful dismissal.
The employee then becomes entitledto statutory termination payments, and in larger organizations after five years' employment, to severance pay, as well as potential damages at common law for wrongful dismissal.
While a temporary layoff might appear to be a tempting tool for employers during these uncertain times, Ontario courts have long held that layoffs are not available at every workplace.
Generally, layoffs are not necessarily permitted unless there is a valid employment contract between the parties that specifically or implicitly authorizes such a layoff.
Generally, layoffs are not necessarily permitted unless there is a valid employment contract between the parties that specifically or implicitly authorizes such a layoff.
If you do not have a written contract with your employee providing for the right to layoff, don’t panic just yet.
It may well be that your employee is as keen to be laid off during this time as you are to reduce employee costs, since this presents a number of mutual advantages including that:
• Employees will no longer have to attend at work;
• Employees may continue to receive employment benefits if you elect;
• Employees can access unemployment insurance benefits for income support; and
• Perhaps most importantly, employees will have the right to return to work once recalled.
It may be worthwhile to have a discussion with your employees regarding whether they will voluntarily agree to a temporary layoff.
If there is such an agreement, this should be confirmed in writing.
It is advisable to consult with an employment lawyer regarding any temporary layoffs that are contemplated and the documentation that may be required should you proceed in this direction.
3. Its time to be creative…
As every successful business owner knows, where there is a problem, there is often a parallel opportunity.
While it is becoming increasingly challenging to continue business as usual, you should consider how your business could adapt during this time.
Can some of your business be conducted remotely or online? Are there certain ad hoc tasks and projects that your employees can be working on from home?
Can you use this time to focus on your marketing plan or budget for the year ahead? Perhaps now is as good a time as any to review your workplace policies and protocols.
Whatever it is that you choose to do, it is best for your business to keep calm and make decisions with a clear mind based on all the information available to you.
- Simran Bakshi, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Gender Issues Relating to Children: California intersex surgery bill fails
BY GARRY WISE AND SIMRAN BAKSHI
Reprinted from The Lawyer's Daily
Reprinted from The Lawyer's Daily
In a highly controversial decision last month, a California
senate committee voted against proceeding with a bill that would ban cosmetic
genital surgery on intersex infants.
The term intersex refers to persons born with
genitalia, chromosomes or reproductive organs that do not conform to a single
gender. Far from unusual phenomenon, it is estimated that almost two per cent
of the population is born with some form of intersex variation.
This bill, which would have been the first of its kind
in the United States, proposed to defer surgical procedures on intersex
children under the age of six, except for procedures deemed medically necessary
by the Medical Board of California.
The bill proposed to permit intersex children the
opportunity to be involved in the critical decisions made about their gender
identity and health. Its advocates also argue that early “normalization”
procedures can lead to incorrect gender assignments and permanent loss of physical
sensation.
This is an emerging social policy issue that raises
difficult medical, ethical and parental issues.
The practice of genital surgery on intersex infants
has long been criticized by the United Nations and advocates for the intersex
community argue that the very notion that anatomically atypical sexual features
must, by definition, be “fixed” is problematic at its core
The Canadian Bar Associate’s Sexual Orientation and
Gender Identity Community Section (SOGIC) and Health Law Section recently put
forward similar recommendations to the Standing Committee on Health in relation
to its study of LGBTQI2S health in Canada. The CBA specifically expressed
concern regarding the exemption provided for at subsection 268(3) of the Criminal
Code as it relates to the rights of intersex children, which allows
surgical procedures for the purpose of “normal reproductive functions or normal
sexual appearance or function”.
As the CBA submissions explained:
We are not suggesting a
complete ban on surgical procedures. We recommend amending the Criminal Code to
postpone genital normalizing surgeries on children until the child can
meaningfully participate in the decision – except where there is immediate risk
to the child’s health and medical treatment cannot be delayed.
Opponents of the California bill claimed it was overly
prescriptive in shutting out parents and medical professionals from decisions as
to whether surgical intervention is in a child’s best interests. They argued the
bill unfairly assumed that parents and doctors opt for surgery without due
consideration of the risks and benefits to the child, and that no good would
ultimately come from deferral to age six, since parents would then, in any
event, be required to make these decisions on behalf of their still-infant
children.
Is a child likely to suffer greater harm from early
surgical intervention which occurs without the child’s input? Can a child
legally provide true consent to an intersex surgery, pre-puberty? Is a child
more likely to be adversely affected if surgery occurs before rather than after
puberty? Should a parent be entitled to decide about a child’s gender identity
without the child’s involvement?
The answer to these questions may well vary from child
to child. Is a one-size-fits-all ban on intersex surgeries for all children
under the age of six, then really the answer?
While the law must protect a child’s right to
develop and to identify with one, both or neither gender; it must also be flexible
enough to recognize that there will be circumstances where it may be in the
child’s interest for the parent to decide on action earlier rather than later.
Beyond that, society’s “binary” understanding of
gender must change.
Decisions regarding intersex surgery must be based on what
is genuinely best for the individual child. They should not be based on discrimination,
fear or stigma.
This article was originally published by The Lawyer's Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
140Law: Legal Headlines for the week of March 23, 2020
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Monday, March 16, 2020
140Law: Legal Headlines for the week of March 16, 2020
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Monday, March 02, 2020
140Law: Legal Headlines for the week of March 2, 2020
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Monday, February 17, 2020
140Law: Legal Headlines for the week of February 17, 2020
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Monday, February 10, 2020
140Law: Legal Headlines for the week of February 10, 2020
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Monday, February 03, 2020
140Law: Legal Headlines for the week of February 3, 2020
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Monday, January 27, 2020
140Law: Legal Headlines for the week of January 27, 2020
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Tuesday, January 21, 2020
Grandparental Access and Custody Rights of Extended Family Members
BY GARRY WISE AND SIMRAN BAKSHI
Reprinted from The Lawyer's Daily
As Hillary Clinton famously observed, it takes a village to raise a child.
In many cultures, this philosophy is quite literally represented in the way family units are structured. Parents, children, grandparents, aunts, uncles and even cousins often live together under one roof, with all adults playing an integral role in the upbringing of the children of the home.
Upon a relationship breakdown, the close bonds these children develop with their extended family members are at genuine risk.
Despite this, Canada’s family law continues to reflect the primacy of the nuclear family - parents and children only. This focus detrimentally affects grandparents in particular, many of whom have resided with the family unit and even been de facto primary caregivers of their grandchildren, until the marital or relationship breakdown.
As the Court of Appeal noted in Chapman v Chapman (2001), 2001 CanLII 24015 (ON CA), which remains the leading Ontario decision on grandparental access, the underlying assumption is that parental autonomy and deference is to be maintained, unless a parent behaves in a manner inconsistent with the best interest of the children.
Further, a strong, existing relationship between an extended family member and a child must be demonstrated for access with the extended family members to even be considered.
While this approach might make good sense in the context of a typical nuclear family, it does not necessarily reflect the realities of other types of family units, particularly the joint or combined family.
Canadian law will protect relationships between a child and an extended family member, if that relationship is substantial in nature and, and in the words of the Ontario Court of Appeal, is subject to being “imperilled arbitrarily” by a parent.
Our family courts appear to fall short, however, in failing to apply the best interests test to account for the emotional and cultural significance of extended family, and to prevent the further destabilization a child may suffer on marital or relationship breakdown if their bonds with extended family are not more meaningfully protected.
This is particularly true of extended family that children have resided with.
It has been argued that a parent should have elevated status in assessing best interests. This position was considered by Justice Aston in Vanderhoek v Stark, [1999] O.J. No. 4479. While the Court expressly rejected that there was any legal presumption in favour of a parent in custody cases, it nonetheless stated:
“Family” may hold different meaning to each of us, particularly
when viewed through a cultural lens. We will need to continue to reconsider
whether Canadian law’s focus on the nuclear family comes at the expense of
critical, extended familial bonds in differently-constituted families.
Reprinted from The Lawyer's Daily
In many cultures, this philosophy is quite literally represented in the way family units are structured. Parents, children, grandparents, aunts, uncles and even cousins often live together under one roof, with all adults playing an integral role in the upbringing of the children of the home.
Upon a relationship breakdown, the close bonds these children develop with their extended family members are at genuine risk.
Despite this, Canada’s family law continues to reflect the primacy of the nuclear family - parents and children only. This focus detrimentally affects grandparents in particular, many of whom have resided with the family unit and even been de facto primary caregivers of their grandchildren, until the marital or relationship breakdown.
As the Court of Appeal noted in Chapman v Chapman (2001), 2001 CanLII 24015 (ON CA), which remains the leading Ontario decision on grandparental access, the underlying assumption is that parental autonomy and deference is to be maintained, unless a parent behaves in a manner inconsistent with the best interest of the children.
Further, a strong, existing relationship between an extended family member and a child must be demonstrated for access with the extended family members to even be considered.
While this approach might make good sense in the context of a typical nuclear family, it does not necessarily reflect the realities of other types of family units, particularly the joint or combined family.
Canadian law will protect relationships between a child and an extended family member, if that relationship is substantial in nature and, and in the words of the Ontario Court of Appeal, is subject to being “imperilled arbitrarily” by a parent.
Our family courts appear to fall short, however, in failing to apply the best interests test to account for the emotional and cultural significance of extended family, and to prevent the further destabilization a child may suffer on marital or relationship breakdown if their bonds with extended family are not more meaningfully protected.
This is particularly true of extended family that children have resided with.
It has been argued that a parent should have elevated status in assessing best interests. This position was considered by Justice Aston in Vanderhoek v Stark, [1999] O.J. No. 4479. While the Court expressly rejected that there was any legal presumption in favour of a parent in custody cases, it nonetheless stated:
14. … In my view,
each advantage that one side can point to is effectively offset by an advantage
on the other side. The factor that tips the scales, though not specifically
enumerated in section 24(2), is that Mr. Vanderhoek is a parent and the Starks
are grandparents.
Though grandparents
have always had standing to seek access and/or custody, the Ontario CLRA was recently amended
to expressly include grandparents as named persons who may bring such
applications, and to require that the nature of their relationship with a
grandchild be considered as a factor in determining the best interests of the
child.
To many, this was seen to signal a paradigm shift, as a statutory recognition of grandparents’ roles
in raising a child.
However, in discussing the significance of these amendments, the Court
in Whitteker v Legue, 2018 ONSC 1557 (CanLII) was quick to clarify that the
mere fact that grandparents are now specifically referred to in the CLRA does not elevate them to any
special status.
This article was originally published by The Lawyer's Daily (www.thelawyersdaily.ca), part of LexisNexis Canada Inc.
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Monday, January 20, 2020
140Law: Legal Headlines for the week of January 20, 2020
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Monday, January 13, 2020
140Law: Legal Headlines for the week of January 13, 2020
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Monday, January 06, 2020
140Law: Legal Headlines for the week of January 6, 2020
- Garry J. Wise, Toronto
Visit our Toronto Law Office website: www.wiselaw.net
Subscribe to:
Posts (Atom)
